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  1. 1. Citation: 13 Int'l J.L. & Info. Tech. 260 2005 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Nov 8 06:39:39 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=1464-3693
  2. 2. lnternationalJournal ofLaw and Infnrnation Technolog Vol. 13 No. 2 © Oxford Uninersity Press 2005; all ights reserned doi:10.1093/ilit1eaiOl1,available online at nwn.ijlit.oxfnrdjounats.rg Indecency on the Internet and International Law ALEXANDER SHYrOV' Abstract This article deals with the necessity to suppress pornography on the Internet, including both child and adult pornography. The main question is whether the states should co-operate in enforcing their moral standards, taking into account also the fact that their standards of indecency do differ. The article begins with giving an example of difficulties arising from suppressing the crime of pornography on the Internet. It givers a general overview of the state of international law in this area. It is stressed that the lack of the international cooperation can mean for the states a diminishing of their sovereignty to determine their public policy. Pornography also threatens' traditional cultures and their concept of decency. Since there is an international obligation to protect world cultures and cultural diversity, the reason to suppress pornography, particularly adult pornography, on the Internet is not bound to proving any individual harm which adult pornography may cause. The reasons to ban pornography are weighed against the reasons not to ban. It is argued that there are sufficient reasons to ban adult pornography internationally as well as child pornography. The main difficulty to introduce an effective international regulation of the ban is the lack of the international standard for obscenity. The US standard found in the US case law is examined and found unsatisfactory. It is finally emphasised that it is not enough for the states to The author of this article is a Russian lawyer who holds a Doctorate degree in law from the Russian Academy of Public Administration in Moscow, Mlitt and PhD in law from St Andrews and Glasgow universities in Scotland. He is currently a full time lecturer at law school in Chiang Mai University, Thailand. For the comments he can be contacted at: School of Law, Faculty of Social Sciences, Chiang Mai University. Chiang Mai. 50200 Thailand; e-mail: shytov@yahoo.com I acknowledge the help of Dr. Panarairat Srichaiyarat, the head of law school in Chiang Mai University in developing pro and anti-pornography reasons in this article.
  3. 3. ALEXANDER SHYTOV introduce criminal sanctions and enforce them strictly when combating pornography on the Internet. International law needs to address deeper problems which give rise to the wide spread indecency on the Internet. 1. Introduction One report from the USATODAY.COM helps us to grasp few of the problems related to indecency on the Internet and international law. It was reported in 2001:2 Despite a successful Russian-U.S. operation to shut down a Web site that sold child pornography, police decried legal chaos that leaves them virtually powerless against Russian child pornographers who peddle their products worldwide. Operation Blue Orchid, a joint effort by the U.S. Customs Service and the Moscow city police, has led to criminal inquiries in 24 nations against people who ordered child pornography videotapes from the Russian Web site. The police operation was named after the Web site, which was shut down earlier. Many of the tapes were bought by people in the United States; others went to Germany, Britain, France, Denmark, China, Kuwait, Mexico and scores of other countries. But Russian investigators said the operation nabbed only a few of the legions of child pornography producers who run international distribution networks from Russia with near-immunity. 'According to estimates by foreign experts - and though it pains us to hear this, it is true - Russia is turning into a kind of Malaysia or Thailand, where the main flow of child pornography now is coming from Russia,' said investigator Edward Lapatik. Under Russian law, possession of pornography is not a crime. Production and trafficking are illegal, but the law makes no distinction between child pornography and pornography involving adults - treating both as lesser crimes punishable by a maximum of two years in prison, the same punishment for petty theft or shoplifting. Deep poverty drives scores of children in the Russian hinterlands to flee their homes and their oftenabusive parents, and travel to Moscow. Once there, the children become easy victims. 'Some are paid for these activities, others just get food,' investigator Alexander Bynenko told a news conference. Even when the children fall into the hands of police, there is little the cashstrapped authorities can do. Since the start of the year, some 5,000 teen-agers have been detained in Moscow for various offenses. Of them, only 98 could be placed in orphanages; the rest were sent home, and probably ran away again, Lapatik said. During Operation Blue Orchid, police seized some 600 videotapes, 200 digital video disks and 2 http://www.usatoday.com/tech/news/2001-03-27-porn.htm
  4. 4. INDECENCY ON THE INTERNET AND INTERNATIONAL IAW many boxes of photographs. Bynenko displayed stacks of graphic photographs involving hundreds of children, but said authorities were unable to track the fate of each child. Four people have been arrested in the United States and 15 search warrants have been issued as part of Operation Blue Orchid. At least four people have been arrested in Russia and two suspects have committed suicide - not out of fear of long prison terms, but of the treatment sex offenders get from other inmates in Russian jails, investigators said. Adding to the difficulty of fighting child pornography in Russia, the country's age of consent is 14 - but even offenders convicted of having sex with younger children face a maximum of four years. The light punishment has stoked sex tourism to Russia, police said. One such alleged U.S. tourist, Glenn Martikean of Portage, Ind., was arrested. The boy was 14, and Russian police were unable to press charges. Martikean was arrested by U.S. customs agents after he flew home and was indicted Friday by a grand jury in Indiana on charges of importing child pornography and interstate and foreign travel to engage in sexual activity with minors, customs said. This report has highlighted several important issues related to indecency on the Internet. First, the Internet has become the means of distribution of pornography. A search on the Internet for 'porn' can display 138,000,000 web sites, while the word 'chastity' produces only over 300,000 web sites! It is apparent that chastity is not what is in the head of the most of the Internet users. There are estimates that almost half of all searches made using Internet search engines were seeking pornographic materials.3 Pornography is one of the flourishing areas of e-commerce. There are many who are so addicted to viewing porn materials, that they are willing to pay much money for receiving porn materials either directly through the Internet or using the Internet for ordering them. Should the government do something to protect people from this addiction? If so is there a conflict with the rights to privacy and freedom of expression, which are the parts of international human rights law? Second, the Internet defies the attempt of a single country to regulate its content. If the Internet content has to be controlled, it can be done through the international cooperation. Should the countries cooperate to suppress pornography on the Internet or not? It seems that there is a consensus that the child pornography should be suppressed, but there is a lack of agreement or at least enforcement effort to suppress adult pornography. Even in the case of child pornography, as it has been indicated in the report above, Russian police can do little to solve the problem. ' Lloyd I. Information Technology Law. - Butterworths, 2000 - P. 273.
  5. 5. ALEXANDER sHrov The third problem can also be deduced from the report: should the society press their governments to enforce strictly indecency laws? In the report, the Russian police lamented that law is not strict enough, yet at the same time a few suspects committed suicide fearing conviction. The main problem with Russian police is not that there is no law forbidding distribution of pornography, but the lack of enforcement. How does this problem affect international law? 2. International law and pornography: overview Many countries contain law against pornography. It differs from country to country. In some countries a mere possession of pornographic materials can be a crime. That was the case in the US before the Supreme Court began to limit the power of the American states to punish a mere possession of pornography. 4 The same tendency is observed in many other countries. In A.D.T. v. the United Kingdom5 The European Court of Human Rights among other issues raised in the case, determined that a mere possession of videos with indecent content without the intent to distribute it, is a matter of privacy protected by the human rights law. The situation can be different with child pornography.6 Possession of child pornography materials is a crime in the UK, 7 and also in the US. 8 However in countries like Russia and Thailand, the law does not distinguish between child and adult pornography, and as long as there is no intent to distribute it, it is not a criminal offence to possess it. Even though possession of pornography can be regulated differently in different countries, it appears that most of the countries prohibit sending pornography, at least 9 the leading producers of it: the USA andJapan. There is not any specific international agreement which bans all types of pornography on the Internet. The Council of Europe Cybercrime Convention, the first and thus far only multilateral treaty to address specifically the problem of computer-related crime and electronic evidence gathering, bans child pornography only.' Apart from that, there are two 'See for example: Stanley v. Georgia, 394 U.S. 557 (1969). 'Application no. 35765/97 Decision of the Court on 31.07.2000. The text is available at: http:// hudoc.echr.coe.int/Hudocl doc2/HEUD/200210/a.d.t.%20v.%20uk.batj.doc 'On child pornography laws in different countries see: http://www.interpol.int/Public/Children/ SexualAbuse/NationalLaws/ 7 Lloyd 1. Information Technology Law. - Butterworths, 2000 - P. 276-7. 8 See Title 18 of the US Code, Chapter 110, Section 2252A. The text is available at: http:// www4.law.cornell.ed/uscode/18/plchl 10.html 'Lloyd I. Information Technology Law. - Butterworths, 2000 - P. 274. The American law will be considered to a greater detail below. For Japanese law see: Makoto lbusuki 'Legal aspects of cyber-porn in Japan' at: http//www.lex-electronica-org/articles/v-I /Ibsuki.html and AlexanderJ. 'Obscenity, Law and Pornography in Japan' in: Asian-Pacific Law & PolicyJournaL - Vol. 4. 0 20 0 3 . - p. 149-168. Article 9 of the Convention. The text is available at: http://conventions.coe.int/Treaty/en/Treaties/ Html/185.htm
  6. 6. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW international agreements which cover the circulation of obscene publications. There is an International Treaty entitled 'Agreement for the Suppression of the Circulation of Obscene Publications' which was signed in Paris in 1910, and was amended by a Protocol signed at a meeting of the United Nations in New York in 1949. There is also the International Convention for the Suppression of the Circulation and Traffic in Obscene Publications (1923) amended in New York in 1947. The USA, Russia and many European countries are parties to the treaties. Such countries, like Japan, Thailand and Germany are not among the parties. Denmark and the Netherlands denounced 1923 Convention. The most important is article 1 of the 1923 Convention which states that the states have an obligation to discover, prosecute and punish any person engaged in trade or distribution, or public exhibition any obscene objects." There are specific provisions prohibiting export and import of obscene materials. Advertising availability of obscene materials is also banned. Article 2 of the 1923 Convention maintains that a person, who has committed offence defined in article 1, 'shall be amenable to the courts of the Contracting Party in whose territories the offence, or any of the constitutive elements of the offence, was committed. ' 12 The 1910 Treaty sets up important procedures for international cooperation to 3 suppress the circulation of indecent materials.' The weakness of 1910 and 1923 treaties is that they were agreed at the time when there was a comparative unity in understanding of what indecency or obscenity is about. Therefore, those agreements left the concepts of obscenity or pornography undefined. From the general wording of the treaties it is apparent that they can be applied to the Internet. However, the age of the agreements, and particularly the law enforcement practices in the area of adult pornography questions the commitment of the parties to be bound by the treaties. The number of the countries, which remain officially the parties of the treaties, does not exceed 60 while the total number of the states who are members of the UN is 191. If distributing pornography is a crime in many, if not all, countries, then it is apparent that such country can launch prosecution against porn distributors worldwide through the procedure of extradition. Moreover, there are many so called 'Mutual Legal Assistance in criminal matters Treaties' (MLATs) which can assist in this area. These treaties help to obtain testimony and tangible evidence from each country. Pursuant to a request under an MLAT, the requested authorities may: supply official records, locate persons, execute search and seizures of property, arrange 1 See the text of the Convention: http://www.austlii.edu.au/a/other/dfat/treaties/1935/19.html 2 ' ibid. '3 See the text: http://www.ausflii.edu.au/au/other/dfat/treaties/1912/10.hml
  7. 7. ALEXANDER SI-IMTOV for the appearance of witnesses or experts before the relevant judicial authority, secure extraditions, transfer accused persons needed in the requesting country, exchange relevant information relating to the laws, regulations, and international practices in criminal matters of the contracting state. The MLATs, however, can be used to obtain information from a foreign country for only those criminal violations listed in the MLAT. It is apparent that adult pornography is not commonly at that list and extradition for publishing adult pornography is not what one can hear often about. The situation is different with child pornography cases where extradition was sought and sometimes obtained. 14 In relation to adult pornography there are two major difficulties to extradite. First of all, there would be no extradition if the host country does not consider a particular material to be obscene. Secondly, there is often not enough information and evidence for the country where the porn materials are received to prosecute a person who is allegedly running a pornographic website. For example, a search on the whois for the owner of one porno15 graphic site produces this information: Registration and WIOIS Service Provided By: directNIC.com Intercosmos Media Group, Inc. provides the data in the directNIC.com Registrar WHOIS database for informational purposes only. The information may only be used to assist in obtaining information about a domain name's registration record. directNIC makes this information available 'as is,' and does not guarantee its accuracy. Registrant: no organization P.O. box 195 Maassluis, none 3140 AD NL 3110595959 Domain Name: HEREISTHEPORN.COM Administrative Contact: de Ruiter, Ralph ralph de ruiter@hotmail.com P.O. box 195 Maassluis, none 3140 AD NL 3110595959 It is clear that this information is not sufficient for seeking the extradition of a person from the Netherlands to, for example, Thailand where posting pornographic materials is illegal.' 6 There is a need for international cooperation in the area of criminal prosecution and in forcing the registrars 4 See for example: http://www.usatoday-con/tech/news/techpolicy/2002-O849-net-pornograply x.htm; http / /www.ice.gov/uraphics/news/newsreleases/articles/childporn.htn US/whois/resultsjhniljsessionid=XQDOBGRIO42VUCW LEAKS"http://www.networksolitions.com/en FEQ? whoistoken--0& requesuid=1458258) "'According to Dutch criminal code, offer unasked-for pornography, offer asked-for or unasked-for pornography to someone younger than 16 years old and use someone younger than 16 years old to make child pornography for distribution are illegal (articles 240, 240a and 240b). See: httpL/L web4health.info/en/answers/sex-paraphi-legal. htm. According to Thai penal code (section 287)any distribution of pornography is illegal. If a Thai minor has accessed a Dutch pornographic web site, theoretically, Thai government can ask for extradition of the Dutch porn distributor.
  8. 8. INDECENCY ON THE INTERNET AND INTERNATIONAL lAW of domain names to disclose full information concerning the managers and registrants of the web sites. Except the area of child pornography it does not appear that many international efforts have been made to suppress indecency on the Internet. 3. Pornography and enforcement of morals by law The question whether the governments should enforce morals by law is an old one. In the UK, Judge Devlin and the leading legal scholar of the last century H.L.A. Hart fought on this issue.' 7 The debate was started in 1959 by Patrick Devlin, who was at that time a High CourtJudge. In his public lecture, Devlin stated: 'It is wrong to talk of private morality of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the supervision of vice ....i s There can be no theoretical limits to legislation against immorality." Hart responded with the article 'Immorality and Treason' (1959) where he insisted on separation of law and morals. 19 The separation thesis was developed in Hart's famous book: The Concept of Law.20 Hart did not argue that there is no connection between law and morals. But he insisted that law and morals are different spheres of human activity. 2 ' The key difference of Hart's thesis from Devlin's is that Hart claimed that 'there is no important necessary or conceptual connection between law and morality.' 22 Hart maintained that only if there is a harm done to others, then law can intervene into the area of private morality. The discussion about pornography and the Internet is much focused on whether pornography, particularly adult pornography is harmful to others or not. It is important to distinguish between consenting viewing by adults and by those who do not consent (like in the case of pop-ups) or children. Organisations like Morality in Media present a number of convincing examples when pornography did indeed have harmful effects on the adult viewers. At the same time many other organisations like Free Speech Coalition convincingly argue that there is no proven link between viewing adult pornography and harm to the consenting adults. The fact that a single individual under the influence of viewing pornography committed a sexual crime may not necessarily prove the rule. At the same "Devlin P. The Enforcement of Morals. - Oxford University Press, 1968. Hart H.L.A. Law, Liberty and Morality.- Oxford University Press, 1963. ' "' Published in: Devlin P. The Enforcement of Morals. - Oxford University Press, 1968. - P. 14. Reprinted in: The Philosophy of Law. - Ed. By R. Dworkin. - Oxford University Press, 1977. d "' 21 2 Hart H.L.A. The Concept of Law. - 2" edit. - Oxford: Clarendon Press, 1994. - Ch. IX. Ibid., p. 202. Ibid., p. 259.
  9. 9. ALEXANDER SHYrOV time, the fact that children can access the porn sites does not necessarily justify the conclusion that all porn sites should be banned. The deeper problem here is how should we understand the concept of harm in relation to pornography, which is sufficient enough to ban it effectively? For example, the knowledge that smoking or addiction to alcohol does harm people does not lead to their prohibition in the most of countries. What is the exact harm which pornography causes, and why is it so important to justify the ban on distributing pornography to consenting adults? These are complex questions and require much expertise beyond pure legal considerations. The contemporary discussion, however, misses one particular point on whether or not the governments around the world have another legitimate reason for the right or duty to stop circulation of pornography through the Internet independently from the reason of actual harm to adults. In other words, the question, which this paper tries to address, is whether there is a legitimate reason to ban pornography on the Internet when there is no actual harm being established? This is a legal as well as moral issue, and it can be answered without a necessarily relying on the concept of harm. 4. The sovereignty of the states and the Internet The power of censorship, whether we like it or not, is based on the concept of state sovereignty. The states are free to decide the extent in which they are prepared to control the content of media for the purposes of protection of good morals and public policy, even though the human rights law has established serious constraints on the states in this particular area. As long as there is no violations of international obligations relating to human rights, the idea of sovereignty provides a sufficient basis for the power of the states to ban pornography within their borders. Even though the idea of sovereignty remains the key concept of international law, one cannot ignore remarkable changes in the idea of sovereignty. The problem with the idea of sovereignty is that it is no longer perceived as an absolute freedom to determine the internal policy. Thomas Frank recently showed 'many instances of national sovereignty being23overridden by international law and international or regional regimes.' The phenomenon of the Internet makes the limitation of national sovereignty exist de-facto. The sovereign states can do little to regulate its content independently from each other. Paradoxically, whether the states will opt to ban pornography on the Internet through their collective action or not, their sovereignty in regulating the Internet content is 2' Frank Th. Fairness in InternationalLaw. - Oxford University Press, 1995. - P. 3.
  10. 10. INDECENCY ON T[IE INTERNETAND IN'ERNATIONAL lAW seriously impaired. One can even say that the lack of international regulation of the Internet's content is more damaging to national sovereignty than accepting a binding international obligation to police the content of the web sites situated within the state. A state, which makes an international agreement, exercises its freedom of choice. The state, which leaves this area uncontrolled, leaves uncontrolled much of the activities of its citizens. It may have well elaborated policies to protect family and good morals, to suppress crime and anti social behaviour. However, without implementing this policy on the Internet it runs the risk of not being able to implement it at all. The issue at the moment is whether the sovereign states have enough sovereignty to censor the Internet considering their inner constitutional and external international constraints on controlling the content on the Internet. Both constraints interrelate and depend on the idea of individual freedom and liberty. The limitation of the sovereignty by human rights law has at the same time its origin in the sovereignty itself. Human rights law is based on treaties. In the most successful international treaty on human rights, the European Convention on Human Rights, it is maintained that the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others can be sufficient reasons for the state regulation of the areas of private life and the freedom of expression. 24 Thus, it does not appear that international constraints can prevent the states from regulating the Internet tightly. The inner constraints are more difficult to overcome. It can be presumed that in the democratic society the states can exercise their powers only to the extent the people gave their approval too. Moreover, even their representatives may agree on strict Internet policing, there can be a constitution barrier to hurdle. In relation to the Internet regulation, it means a basic uncertainty. If one government does not have the authority to censor the Internet, this lack of the authority deprives other governments of the real authority they may have under their constitutional law. If one government cannot or does not want to control the content of the web sites based on its territory, it makes problematic for the other states to exercise their control over their web sites, because there is no much difficulty for the nationals of the latter states with a strict control to move their web sites to the former state with a less control. A solution could be to adopt the concept of over-national sovereignty at least in the area of the Internet where the states regulate the content of the Internet internationally. " Articles 8 and 10 of the Convention.
  11. 11. ALEXANDER SHYfTOV The idea of sovereignty is not the only principle of international relations. Since Grotius and the Westphalian system, the other principles have been following: sovereign equality of states; the right of non-interference in domestic affairs of the sovereign state; territorial integrity of the state; the obligation to abide by international agreements; the principle of the peaceful settlement of disputes; and the obligation to engage in international cooperation consistent with national interests. The nature of the Internet is such that uncontrolled content of the Internet in one country can impair seriously not only the sovereign powers of the states to determine their internal policy, but also other principles, particularly, the principle to engage in international cooperation. There is a need for the principle that a State must not allow its citizens to use its sovereign protection to be involved into distributing pornographic materials considered to be indecent in another State and which affect the territory or citizens of the another State. Without such principle, it is very problematic to talk about comity of nations as a state of mutual harmony, friendship, and respect between nations. 5. Pornography as a threat to traditional cultures One problem with the inadequacy of the mentioned discussions on the harm of pornography is that the harm caused by pornography is not conceived equally among the nations. In fact, the harm of pornography will be different in different cultures. In so-called 'open societies' people have acquired a certain element of immunity against pornographic materials. In so called 'closed societies' with a rigid external control of morals the harm by the open access to porn materials on the Internet can be devastating. Like the exposure of the Eskimos to vodka brought by Russians led to their not only moral but also near physical extinction, in the same way the American porn industry can have a similar impact on many cultures in the world. This argument is different from the argument of harm mentioned above. What is maintained here is not the reason that in order to justify a universal ban of pornography on the Internet, one has to establish the fact of a detrimental impact of pornography on other cultures. That would mean a return to the harm argument. What is maintained here is the principle that when dealing with the impact of pornography on different cultures in this world one has to apply a precautionary principle in order to avoid fatal damage to the cultures. Precautionary principle is not a simple means to ban everything what can be harmful. When breathing in a polluted city, it does not mean that one has to stop breathing following the precautionary principle. When precautionary principle is applied, law must look at the element of necessity
  12. 12. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW and value of those activities which will be affected by a precautionary ban. It is difficult to see any overriding necessity for a human being to see pornographic materials on the Internet, even though there are some individuals who can feel such a necessity. Sexual lust may cause immense suffering to an individual if his or her sexual drive is not met. In this situation, one could say that pornography could provide a means of indirect satisfaction to such individuals. However, it is difficult to imagine an individual for whom viewing the pornographic images on the Internet become a matter of life and death. If there is one, then it is doubtful whether this person is psychologically sound. Since there is an international obligation to protect world cultures and cultural diversity, 25 and since it is beyond doubt that pornography threatens many cultural beliefs on what constitutes decency, it is obvious that the states have a sufficient legal basis to ban pornography on the Internet even though there is no any proven harm to an individual. It does not mean that the international law must enforce uniformity on the states in relation to the standards of obscenity. It means only, that the Internet is exempted from narrowly national application of parochial standards of decency. In relation to other means of communicating ideas and images the states should exercise full freedom in determining their standards of decency, as long as those means do not transcend their national borders. 6. The reasons against the absolute ban on pornography There are stronger arguments against universal prohibition of pornographic materials. There are several reasons, which can be put forward against banning adult pornography on the Internet. The first reason is that one must be free to decide what he is going to see or not to see. As for the adult models, they can claim freedom to do whatever they want to do with their body. The state by intervening in this area threatens the freedom of expression, and also threatens the rights to privacy. Further, it has to employ public funds. Considering the size of pornography on the Internet and the vastness of the Internet, it is clear that policing it would demand a substantial sum of money from the pocket of taxpayers. Apart from that, over regulation discourages business initiative. Porn business, even taken in its mild forms only, is one of the booming areas " For general information see: www.unesco.org/ The text of European Cultural Convention is at: http//fletcher tufts.edu/multi/www/bh3l2.html. UN Convention Concerning the Protection of the World Cultural and Natural Heritage is narrow in scope, but its preamble contains customary principles of international law in relation to protection of cultures as a world heritage of mankind: httpLL whc.unesco.org/world he.hun. Apart from that cultural rights are often protected as human fights in innumerable human rights documents.
  13. 13. ALEXANDER SHYrOV of business activities. A pure economic approach would resist the total suppression of porn business even on the Internet alone because the capitalist type of economy we live in needs a constant stimulus. If there is no area where people make money the whole system is in danger of decay and collapse. For the country like the US, one can argue that it would be detrimental for the US economy to suppress all forms of porn industry, because the whole US economy is under the pressure of negative international trade balance. So why not to export porn materials produced in such abundance? It is an acknowledged fact that the most 26 of pornographic materials, at least until recently, were held in the US. Even in a healthier capitalist economy, it is important that people consume more and more, because the ever-increasing consumption keeps economy running. The increasing demand creates offer and encourages investment. Let us consider these reasons in greater detail. 6.1 Freedom and pornography The argument that restriction of pornography violates one's freedom, and particularly freedom of speech is often put forward against any attempt to suppress adult pornography, and indeed, to limit significantly child pornography as well. This issue has become one of the most controversial in American case law. The reason for it is not only because the US is one of the leading producers and distributors of pornography, but also because of the constitutional subtleties of that country. The US Supreme Court occupies a unique position of being able to strike any legislation provision down which in the opinion of the Court violates broadly formulated rights of American citizens. That happened with the Child Pornography Prevention Act of 1996 (CPPA). This Act is very important for the Internet users because it forbids not only child pornography which involved particular children as models, but also forbids so called virtual child pornography, which is produced without involving any particular child. The specialized software is utilized to produce pornographic images of children that appear realistic. Pornographic images of adults are changed and edited to create sexually explicit scenes, which have never occurred in reality. These images are sometimes called as pseudo photographs. The CPPA prohibited pornographic images made with actual children as well as any sexually explicit image that is advertised or distributed in such a manner that it conveys the impression it depicts a minor engaging in sexually explicit conduct. In the case Ashcroft v. Free Speech Coalition the Supreme Court found the provisions of the CPPA to be too broad and violating the freedom of '6 Ibid., p. 274.
  14. 14. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW speech. 27 The case was initiated by the Free Speech Coalition, an organization funded by businesses who are involved in the production and distribution of pornographic materials. In principle, the legislative ban of virtual child pornography has not been denied by the Court. In finding violation of the freedom of speech, the Court held that the law must ensure that the artistic works are protected as far as their merit does not depend on the presence of a single pornographic image. This case can serve as an example of how important the right to expression is in dealing with pornography. This case has also international significance because of the nature of the Internet. The issue of freedom of expression and the right to privacy are the rights which are protected not only by national legislation but also by international law. It is also clear that this freedom and this right are not absolute, and when giving protection to them they must be balance against other rights and freedoms, apart from the considerations of good morals, public safety and so forth. Pornography on the Internet can be considered as a violation of the freedoms and the rights of other people. The right to privacy and family life requires that the private things including sexual relationships must be held private and not exposed internationally through the Internet. The right to family life can be endangered by an addiction to pornographic materials. Further, the rights to privacy of those human beings who are used as models must be protected too. Freedom of thought, conscience and religion can also be threatened by pornography, as long as this freedom requires practice and observance of faith or belief. For example, a Christian who believes that a lustful look is equal to adultery as unforgivable sin (according to the Orthodox Christian tradition), can conceive pornography on the Internet as threatening the most important relationship this person has relationship with God. A Buddhist can consider pornography as a serious impediment to the goal of all being - Nirvana, and as awaking of the base nature, which leads to the increase of suffering in the world. A Muslim can view it simply as an abomination for which Allah will hold the whole earth accountable. A Communist would think that pornography is a form of exploitation violating the dignity of human being. A mere consideration that pornography can disturb so sizable communities should give concern to the authorities whose task is preserving public peace. As for the freedom of expression itself, it is possible to argue that the most important element of this freedom is expressing one's ideas and opinions. Even though pornographic images may carry certain ideas, at the same time they can block other ideas. This blocking can occur not only though the Internet traffic congestion, but also though diverting one's attention, intellectual and creative powers from the noble objects of 27 Ashcroft v. Free Speech Coalition 535 U.S. supct.law.cornell.edu/supct/html/00-795.ZS.html 234 (2002). The text available at: http://
  15. 15. ALEXANDER SHYFOV thought to the base objects of mean nature. In other words, pornography can become a hindrance to the freedom of expression. 6.2 Economic argument Economic argument can both support and oppose the international ban of pornography on the Internet. Moreover, this argument can help to identify the root of the problem. The roots of pornography lie much deeper than mere opportunities opened by technological advances of our age. The report given in the introduction to this paper clearly indicates that poverty and the weakness of family bonds creates conditions for pressing people become involved in pornographic business. What report, however, has not underlined, is that the riches are on the other side of pornographic business. Rich people from 24 countries, mainly developed countries were among the users of pornographic materials generated in Russia. It would be unfair to blame the rich for the evil of pornography, even though the fact is that the sharp division between the rich and the poor is one of the sources of social evil. It is not the riches to blame. Nevertheless, being the rich opens the way for a deep moral degradation to display itself. One has to deal with the root to eliminate completely the consequence. Cultivating good morals on personal and social levels are the best remedies against all social evils including sexual crimes. Good morals also provide a good foundation for law enforcement. One of the weaknesses of the economic approach is that it neglects this simple fact. The economic approach looks at the costs and benefits which can be financially measured. The economists can argue that attempting to introduce an international ban on pornographic materials on the Internet will lead to more costs than benefits. They fail, however, to estimate the value of moral virtues. The economic approach was powerfully defended by Judge Posner. 28 There is, however, a need for legal scholars to present a full value of moral virtues like love, sympathy, faithfulness honesty and integrity. 29 Therefore, economic argument against enforcing morals cannot stand unless the benefits generated by good morals are taking into account. The utilitarian maxim, that the evil will eventually be felt by the evildoer, has the following implication: a country or a person who benefits from immoral business will eventually suffer from it. The evil of pornography lies not so much in immediately conceived harm like stimulating sexual crime, or psycho-traumatic effect on unstable minds of the viewers, as in impairing one of the most vital human virtues - faithfulness. The value of marriage for the society is contained in the faithfulness 28 Posner 29 Some R. Economic Analysis of Law. -Toronto: Little, Brown and Company, 1992. of these issues have been addressed by me in the work: Conscience and Love in MakingJudicial Decisions. - Kluwer, 2001.
  16. 16. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW of the partners. Family is a school of faithfulness. Sexual relationship only between husband and wife is a relationship based on trust and mutual faith. A person who is not faithful to his or her spouse can hardly be faithful in other aspects of social life. Pornography displays a completely different type of sexual relationship driven by lust. From the economic point of view, a person who is faithful is much more able to keep his or her promises in the course of economic activities than the person whose behaviour is determined by lust and carnal desire. Pornography tends to reproduce such persons of lust who cannot be trusted. Onora O'Neill, in one of her public lecturers, agreed that trust for society is more important than material goods like bread, and state power like the military force.3 0 Even if one has to follow a 'pure economic approach' without taking into account the economic worth of moral virtues, one can see that in our world of economic disparities it is better for the society to direct their investments not in the porn business but in the education, the environment and health. There are already too many unwanted children who need care and education not to follow the lustful steps of their parents. 6.3 The internationalstandard obscenity? for The Internet, as it has been said, defies a narrow national regulation of content. It requires an international regulation. This becomes very problematic, because the idea of what is indecent would be different from one country to another. What is perfectly decent in the US would be completely indecent in Iran. Certain countries are close to the point when all pornography except child pornography could be seen as acceptable. Obscene is defined in most dictionaries 3 as offensive, rude or shocking, usually because too obviously related to sex or showing sex. Pornography is defined as books, magazines, films, etc. with no artistic value which describe or show sexual acts or naked people in a way that is intended to be sexually exciting but would be considered unpleasant or offensive by many people. In other words, it is the perception of people which matters. What is shocking or considered unpleasant or offensive in one country would not be so in another. The existing law is unsatisfactory in defining pornography. For example the European Convention on Cybercrime defines pornography (in relation to children only) as depicting a person engaged in sexually explicit conduct. 32 The problem is that the border between explicit and implicit sexual conduct cannot be established objectively. What matters is the perception of the viewers. There can be several approaches to solve ' See her lecture in real audio: www.bbc.co.uk/radio4/reith2002 3' See for example: http://dictionary.cambridge.org/ 32 Article 9 of the Convention.
  17. 17. ALEXANDER SHYrOV this problem. If eventually the countries decide to ban pornography internationally, they have to develop a unified standard what pictures should be considered as pornographic. There is an experience in international law to unify different moral perceptions on what is right or wrong, or what constitutes good morals. It can be found, for example, in case law of the European Court of Human Rights. There can be adopted one of two standards. One is the minimum content of what is perceived as pornography. According to this standard, only those images which are considered obscene in all, or almost all, countries will fall into the category of universally banned pornography on the Internet. The second is an average standard. This standard tries to strike a balance between what is completely unacceptable in one country with the one which is perfectly fine in another. There will be little problem if the countries would decide to follow the first standard. However, it can hardly satisfy those countries which perceive 'soft' pornography allowed in other countries as a threat to their culture, religion and morals. If the countries decide to follow the average standard, there is a need for an authority which would decide on the applicability of the standard. There will also be a problem with extradition from the country with a less stringent than the average standard of obscenity. It is possible that all countries will accept an average standard as their own law. However, in some jurisdictions like the US, the Supreme Court can strike down such legislation if the Court perceives it as violating constitutional rights to expression or privacy. Of course, one can take the US law as the standard law to make the international enforcement efforts combating pornography productive. It can be seen realistic, firstly, because the US is the leading producer and the consumer of pornographic materials, and secondly simply because it is a super power whose voice will be respected in every jurisdiction. The problem with the US, however, is that there is no guarantee that it will stick to one stable enough standard of obscenity. The US Supreme Court applies the American Constitution when it decides on whether the rights to expression are violated by anti-obscenity laws. The Constitution, however, is silent on this issue, and much depends on the moral perception of the judges in their interpretation of it. In the beginning the US law of obscenity followed an English law precedent. In 1868 an English case, Regina v. Hicklin, established a test that was ultimately adopted in the United States: If a work had the power to 'deprave and corrupt those whose minds are open to such immoral influences,' it was obscene and therefore illegal. This definition evolved over time until 1973, when the famous ruling on the case Miller v. Calfornia was made. In this case, the appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute. The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. The Supreme
  18. 18. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW Court reaffirmed that obscene material is not protected by the First Amendment, and that such material can be regulated by the States, subject to the specific safeguards enunciated in the decision. ChiefJustice Warren Burger 33 established a three-part test for determining obscenity . It inquired whether (1) "the average person applying contemporary community standards' would find that the work, taken as a whole appeals to the prurient interest'; (2) it 'depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law'; and (3) 'the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.' When the Miller test is compared with the Regina v. Hicklin test, it is clear that it is more complex and depends more on what the judge or the jury perceive as community standards or serious literary, artistic, political, or scientific value. The Miller test will be unlikely suitable for international regulators, because it does not provide a clear guidance in this issue. It relies on the individual perception of adjudicators. The perception will be enormously different in different parts of the world. What is perceived as of high value in Hollywood is an abomination to Iranian government. If suppose, the Iranian government wants the US extradite the distributor of Hollywood soft porn Internet materials, it is apparent that the American authorities would apply their own standards and perceptions of artistic values. It seems that the Regina v. Hicklin standard is more stringent and specific. It requires taking a perspective of those who are open to immoral influences without passing judgement on what constitutes community standards or artistic value. 7. Child pornography v. adult pornography There are many reasons for the fact that even though transmitting pornography is illegal in many countries, there is a lack of cases (particularly involving adult pornography) where the offenders were extradited. Perhaps, one of the key reasons for the lack of extradition for the crime of indecency is the existence of double standards in relation to child and adult pornography on the Internet. Child pornography is universally condemned, while many regulators turn their blind eye on the adult pornography. There is an Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. 34 According to the protocol, producing, distributing, disseminating, importing, exporting, offering, selling or possessing child 35 pornography constitute extraditable criminal offence. 3SThe text is available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?coirtus&-%,ol=413&invol=15 4 " Text is at: http://www.unicef.org/crc/annex2.htm It is interesting fact that neither Russia not Thailand are parties to that Protocol: http://www.unicef.org/crc/opsx-tableweb.htm 15 Articles 3 and 5 of the Protocol.
  19. 19. ALEXANDER SHYTOV There is, as was mentioned above, no international agreement on banning adult pornography specifically on the Internet. In the Council of Europe Cybercrime Convention nothing is said about adult pornography, even though there are specific provisions banning child pornography.3 6 The fact, however, is that both, adult and child pornography go together. Pornography can be compared to addiction to drugs. People start with mild forms of it until they experience the need for 'a stronger stuff.' The case of David Maycock can serve as a good example. 37 He was convicted in the UK for viewing indecent images of children on the Internet. He acknowledged the fact that his addiction began with adult pornography. There is some research being conducted on the harmful effects of pornography on all parties involved.3 8 The models in pornographic images are subject to various psychological and emotional harms. Images produced serve as a kind of permanent record of the act. As the images are capable of being saved, reproduced and distributed, the lasting memories of the incident threaten greater harm than concealed molestation or even prostitution. The viewers are also subject to indirect harm. Their inhibitions are weakened and they can be easier coached into participating in immoral sexual activity. Expert reports reveal consumers of pornography often become psychologically addicted to the materials. As the addiction becomes more intense, the viewer increases his/her tolerance and seeks more deviant material. Often these individuals act out their fantasies. Children are particularly 39 vulnerable to those negative influences. There is also a strong feminist criticism of pornography as degrading the position of women in the society. The leading feminist critic of pornography is Andrea Dworkin. 40 In Woman Hating,Dworkin criticises pornography business for exploiting women and depicting scenes that abuse women physically and sexually. Another leading legal scholar, who actively promoted anti-pornography measures, is MacKinnon. 4 1 An interesting characteristic of feminist anti-pornography movement is that it views pornography as a violation of civil rights. This position, "Article 9 of the Convention. The text is available at: http://conventions.coe.int/Treaty/en/Treaties/ Html/185.htm 37 http://news.bbc.co.uk/2/hi/uknews/scotland/3456221.stm 0 For influence on women see: http:// " See http://www.netspeed.com.au/ttguy/refs2.htm www.cstn.edu/-psy453/pornoy.htm " Boykin Ch. 'Aschcroft v. Free Speech Coalition' in Southern University Law Review 30 no2 261-75 Spr02003. 4 Dworkin A. Pornography: Men PossessingWomen. London: Women's Press, 1981; Woman Hating.- New York: E.P. Dutton, 1974. See some of her works on line: http://www.nostatusquo.com/ACLU/dworkin/ "' MacKinnon, Catherine A. Feminism Unmodified: Discourses on Life and Law. Cambridge, Mass.: Harvard UP, 1987.
  20. 20. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW however, is not shared by all feminists, and there is a feminist defence of pornography.42 In this respect one can argue that adult pornography must be suppressed as well as child pornography. There are several moral reasons for doing that. If one has to take a deontological moral position, as expressed in many religious ethics prescribing unconditional obedience to God or to dharma (in Buddhism), and also in some secular 43 ethical theories, like the theory of categorical imperative of I. Kant, the evil of pornography becomes self-evident in the light of a religious authority or individual conscience. For those, whom the appeal to religious or moral authority, or intuitive dictates of conscience is not sufficient, deontological rejection of pornography can be expressed through the idea of shame, or the idea of sacredness of marital relationships, or the idea of dominion of a rational nature over animal part of human soul. If one has to take consequentialist reasoning, as particularly expressed in the thought of utilitarians likeJ. Bentham orJ.S.Mill, 44 the reason for suppressing pornography is that the benefits arising from this suppression overweigh the losses. The utilitaians would look for what brings the most sum of happiness or pleasure for the whole society, and they could argue that pleasure generated by pornography stands in a very low grade of pleasures, and more than that, in the end it brings more suffering on both models and views in emotional aspects as well as physical when sexual drive gets out of control. One could also argue that the cost invested in pornographic industry, the time spent on viewing pornography, and even contribution to the traffic congestion on the Internet, all these are sufficient reasons for suppressing adult pornography as well child pornography. Finally, there is also a moral reason which is based on agapic love and sympathy. One must love one's neighbour as oneself - a principle which to a more or less degree is articulated not only in almost every religion of the world and ethical theory, but also in law, including case-law.45 Love is different from animal lust. Agapic love is expressed fully in a relationship between parents and children. Only can a man with a perverse and deprived mind wish his parents and children to be models in pornographic materials or even be viewers enjoying those materials. If one's mind is repugnant to see one's mother or daughter involved in oral sex on the Internet, then it is selfish and immoral to allow someone else's mother or daughter to do such acts. Agapic love requires a firm enforcement of ban on pornographic materials whether on the Internet or anywhere else. 42 McElroy 4 W. XXX: a Woman's Right to Pornography.- New York: St. Martin's Press, 1995. Kant I. The Moral Law. - London: Routledge, 1991. 44PlamenatzJ. The Engtish Utilitarians- Blackwell, 1958. 45See: Shytov A.N. Conscience and Love in MakingJudicial Decisions. - Kluwer, 2001.
  21. 21. ALEXANDER SHYrOV 8. The ways to suppress pornography on the Internet To have international conventions which would prohibit pornography on the Internet is unlikely to be sufficient. Pornography can be examined and fought against not only in legal terms, and not only in narrowly defined moral terms. It is also a reflection of culture. Pornography flourishes in the culture where sensual pleasure is exalted. The age of materialism and consumerism is a good feeding ground for pornography. The unwillingness and inability of the law enforcement officers to suppress pornography, underlines this overwhelming dominion of the materialistic and consumerist culture. Unless there is a serious effort of the international community to grow a different type of culture, all attempts to blot out pornography from the Internet are doomed to failure. Because the Internet reflects international culture, there must be an international effort to shape it. Consequently, international law in this area can be much more than a mere punitive and repressive means. The Internet is a technological phenomenon. Therefore, technological means can be used to suppress pornography, even though without serious changes in culture there will be a constant technological war between those who want pornography on the Internet, and those who do not. It is important to exercise surveillance of the Internet with the purpose of identifying the web sites containing pornographic materials and eliminating or at least blocking them. It can be practical to hold the ISP (Internet Service Providers) responsible for surveillance and blocking access to the porn sites. This, however, will run against the modern tendency to exempt ISPs from the liability arising out of the content transmitted through the Internet. Legal battles can be long, and sometimes not effective. One way to efficiently reduce pornography on the Internet is to oblige all users of the Internet to use protective software. Even though this software may not be perfect to block all indecent materials, the technological advances through investment, creativity and effort can improve it. It is also true that those who are familiar with computer technology will be able to avoid using protective software. However, there are many users who, even if they wish, do not have such knowledge. These technological issues raise questions about intellectual property. International law can facilitate the use of protective technologies by the poor countries and users in the same way it tries to help the poor countries to get cheap medicines. In order to suppress pornography one has to win technological battle through blocking pornographic materials. The Internet technology provides not only a passive defence in the form of blocks and filters. There can be an active advance against porn sites using technological means to prevent their functioning. That can be done through data and system
  22. 22. INDECENCY ON THE INTERNET AND INTERNATIONAL LAW interference in relation to the porn web sites. Without international authorisation of those suppressive practices there can be an international conflict when the authorities in one country make date and system interference with the purpose of damaging pornography files in the country where such interference is not allowed. 9. Conclusion The first conclusion of this article is that pornography on the Internet requires an international legal response. Despite the existence of international agreements and national legislation, pornography on the Internet is flourishing. The international law response cannot be reduced to enforcing criminal sanctions. Even though the states must not abandon criminal punishment of pornography, they have to face a failure to enforce anti-pornography law effectively without taking a complex approach to this problem. International law needs to address the deeper problems which give rise to pornography. The roots of pornography lie in social and moral defects of our society. It reflects economic poverty in one part of the world and economic affluence in another, under the condition of wide spread spiritual poverty and the lack of relational warmth between people in all parts of the world. Modern technology has only emphasised the ills of human relationships. A person and his or her body are used as the means of pleasure, particularly sexual pleasure, for others. His or her soul and personality matter nothing. The technology made this enjoyment of the body, without the regard for human soul and personality, possible in a virtual form. Viewing pornography often substitutes the encounter with the personality of another person. It expresses the alienation between the individuals. Sexual lust suppresses genuine love. International law must and often is the means of communicating the ethical standards to the states and their citizens on what is right and what is wrong, on what is good and what is evil. In this respect, the contemporary international law fails to provide the standards of decency. Moreover, one can notice the existence of double standards in relation to child and adult pornography. There are, however, serious reasons for the necessity to draw such standards, These reasons are not purely ethical, they relate both to the field of human rights and international economics.